OPINION
We are asked for our views on –
(a) whether the Administration Amendment Act, 1929 (Act No. 9 of 1929), allows the appointment of presiding officers of the Divorce Court in an acting capacity or on a temporary basis; and
(b) whether the adoption, with retrospective effect, of a measure which would have the effect of validating past acting appointments, would result in a successful constitutional challenge on the grounds of a conflict with the doctrine of the separation of powers.
The Administration Amendment Act, 1929, does not expressly authorise the appointment of presiding officers in an acting capacity or on a temporary basis. The provision dealing with the appointment of presiding officers is section 10(3)(b) which provides –
"(b) A division of the court shall consist of one or more presiding officers, one of whom shall be the president of the division, who shall be fit and proper persons appointed by the Minister of Justice after consultation with the Magistrates Commission, and such persons shall for the purposes of the Magistrates Act, 1993(Act No. 90 of 1993), be deemed to be magistrates of a regional division as contemplated in the Magistrates’ Courts Act, 1944(Act No. 32 of 1944)."
The question to be decided is whether the power to appoint such presiding officers in an acting capacity or on a temporary basis can be inferred. With regard to the appointment of acting judges, Chaskalson P, (as he then was), remarked as follows in the First Certification Judgment (In re Certification of the Constitution of the Republic of South Africa, 1996 – 1996(1)BCLR 1253(CC) paragraph 127):
"The appointment of acting judges is a well established feature of the judicial system in South Africa. Such appointments are made to fill temporary vacancies which occur between the meetings of the JSC, or when judges go on long leave, are ill or are appointed to preside over a commission. These appointments are necessary to ensure that the work of the courts is not disrupted by temporary vacancies or the temporary absence or disability of particular judges."
We feel that those remarks are equally applicable to the presiding officers of the Divorce Courts. In view of the necessity for acting or temporary appointments it could be argued that the power to appoint such presiding officers in an acting or temporary capacity is implicit in the said section 10(3)(b) since the Act does not make explicit provision for acting or temporary presiding officers.
Since a contrary argument to the one expressed above has been stated elsewhere and in view of the fact that acting appointment of judges(sec.175 of the Constitution) and magistrates(section 9 of the Magistrates’ Court Act, 1944) is provided for explicitly in legislation it is understandable that Parliament wishes to place the matter beyond doubt by adopting a measure such as one envisaged by the proposed subsection (3A) which will make the provisions of the Magistrates’ Courts Act, 1944(Act No. 32 of 1944), relating to acting appointments, applicable to such presiding officers.
The Chairperson of the Portfolio Committee expressed the concern that it might be construed that Parliament was of the view that there was no power to make acting or temporary appointments and that was why the proposed subsection (3A) was being adopted. Recently it has become more commonplace for our courts to take cognisance of circumstances surrounding the making of legislation as an aid in interpreting such legislation. Thus the concerns of the Chairperson might be allayed to a certain extent by an appropriate amendment of the long title and the Memorandum on the Objects of the Bill to emphasise that the adoption of the subsection was to place beyond doubt that acting or temporary appointments were authorised. Appropriate comments to that effect in the debates on the Bill, recorded in Hansard, would also be useful.
The Chairperson also expressed the concern that, although the adoption of the said subsection (3A) would settle the matter as far as future acting or temporary appointments are concerned, the position of presiding officers previously appointed in an acting capacity needed attention. Either they would have to stand or fall by the argument that their appointments were impliedly authorised by section 10(3)(b) of the Act or the new subsection (3A) would have to be adopted with retrospective effect so as to validate the appointments if they were unauthorised. The Chairperson expressed the concern that the adoption of that clause with retrospective effect would mean that Parliament was sanctioning their appointment which meant that Parliament was actually appointing them and thus was acting in contravention of the doctrine of the separation of powers. He felt that the adoption with retrospective effect might thus not stand constitutional scrutiny.
With regard to the principle of separation of powers, the following remarks of Chaskalson P in the First Certification Judgment are apposite:
"The principle of separation of powers, on the one hand, recognises the functional independence of branches of government. On the other hand, the principle of checks and balances focuses on the desirability of ensuring that the constitutional order, as a totality, prevents the branches of government from usurping power from one another. In this sense it anticipates the necessary or unavoidable intrusion of one branch on the terrain of another. No constitutional scheme can reflect a complete separation of powers: it is always one of partial separation." (paragraph 109).
"An essential part of the separation of powers is that there be an independent judiciary. The mere fact, however, that the executive makes or participates in the appointment of judges is not inconsistent with the doctrine of separation of powers or with the judicial independence required by CPV11(Constitutional Principle V11). In many countries in which there is an independent judiciary and a separation of powers, judicial appointments are made either by the executive or by Parliament or by both. What is crucial to the separation of powers and the independence of the judiciary is that the judiciary should enforce the law impartially and that it should function independently of the legislature and the executive." (paragraph 123)
"Appointment of judges by the executive or a combination of the executive and Parliament would not be inconsistent with the CPs." (paragraph124)
In the light of the above remarks it seems to us that even if the Court concluded that the appointments in question were made by a combination of the Executive (in that the persons concerned were chosen by the Minister) and Parliament (if their appointment were to be confirmed by the adoption of the proposed clause) that would not necessarily mean that the appointments would not pass constitutional muster.
We note, however, from the van Rooyen case (van Rooyen and others v The State and others CCT 21/01), that the Constitutional Court found certain provisions of the Magistrates’ Courts Act, 1944(Act No. 32 of 1944), dealing with the appointment of acting and temporary magistrates as well as certain provisions of standard contracts for such appointments to be unconstitutional. The Court found a provision in a contract allowing for dismissal of an acting magistrate for breach of contract to be unconstitutional since it was inconsistent with security of tenure, an essential element of judicial independence. Similarly the Court found section 9(4) of the Magistrates’ Courts Act, 1944, to be unconstitutional since it allowed the appointment of persons who were not magistrates and therefore did not have the security of tenure enjoyed by magistrates. Also section 12 (2)(b) of the Magistrates’ Courts Act, 1944, did not pass muster on the ground that it is inconsistent with judicial independence since it provided that an additional or assistant magistrate –
"…..shall possess such powers and perform such duties conferred or imposed upon magistrates as he is not expressly prohibited from exercising or performing either by the Minister or by the magistrate of the district."
It may be then, that the constitutionality of the confirmation by Parliament of the earlier appointments of acting or temporary presiding officers will depend largely on whether it can be said that the terms and conditions of their appointment were consistent with judicial independence. We say this because there is no express provision of law in terms of which the appointments were made and which can be held up for constitutional scrutiny. Thus, if the terms and conditions of their appointment were consistent with judicial independence, it could be argued that the confirmation of their appointments by Parliament with retrospective effect will not render them unconstitutional.
Unfortunately, we have no instructions regarding the exact terms and conditions of the appointments in question so we cannot say with certainty whether those terms and conditions would render the adoption of the proposed clause confirming the appointments pointless.
Another argument to be considered is that if in law there was authority for the appointments there is no necessity to confirm them now and if there was indeed no authority for them, creating such authority now by means of a fiction could have an effect on the rights of individuals affected by the decisions of those appointees.
The ramifications of this could be quite vast and the Committee might be better advised merely to place future appointments on a sound footing and leave the law to take its course regarding past appointments.
Should the Committee decide to adopt a clause confirming the said appointments with retrospective effect we would suggest that it be a substantive clause in the Bill itself rather than the insertion of a clause in the principal Act. We would, of course be prepared to assist with the formulation if required.
Dated at Cape Town this 20th day of October 2003.
STATE LAW ADVISERS
O.B. KELLNER C. BOOYSE